What’s wrong with Rep. Lamar’s proposed “indefinite detention act”

Although I’m just a law student, when I read Representative Lamar Smith’s Keep Our Communities Safe Act I got the overwhelming sense that he wants to keep immigrants who are in detention detained a lot longer. In Rep. Smith’s opening statement to the House Judiciary Committee which he chairs, he states that his bill “provides a statutory basis for DHS to detain as long as necessary specified dangerous immigrants who cannot be removed.” He also indiscriminately swaps the term “immigrants” for “criminal immigrants” and “dangerous criminal immigrants.” His opening statement is just another example of the rhetoric that we have discussed which blurs immigration law with criminal law.

In the actual legislation, its stated purpose is:

To amend the Immigration and Nationality Act to provide for extensions of detention of certain aliens ordered removed, and for other purposes.

In only one place in the legislation does he exactly describe undocumented immigrants with the adjectives, “dangerous” and “criminal”, and it’s in a section heading. Once again, we are seeing how policymakers such as Rep. Smith would like to throw the majority of immigrants, which include legal permanent residents, refugees, and asylees, under the bus to go after the annually released 4,000 “dangerous criminal immigrants” he alludes to in his statement. According to ICE’s Secure Communities’ 2011 First Quarter Report to Congress:

[They] removed nearly 42,900 criminal aliens, which is more than 54.2 percent of all ICE removals. Nearly 34.1 percent of all ICE criminal alien removals were of Level 1 offenders. Level 1 offenses included threats to national security; violent crimes such as murder, manslaughter, rape, robbery, and kidnapping; and drug offenses resulting in sentences greater than 1 year.

It seems that ICE is perfectly capable and will continue to do its job without the help of Rep. Smith.

This is what we ca look forward to if Rep. Smith’s bill is enacted:

Give DHS more discretion to indefinitely detain individuals who have been ordered to leave the country but can’t be deported because no country will accept them or there is no established repatriation process with the country.

Give DHS the authority to detain for whatever length of time individuals who arrive at our borders without proper documentation or who are otherwise inadmissible during their removal proceedings regardless of the uncertainty of time these proceedings may take. This would disproportionately impact asylum seekers who have no time to get proper documentation because they are fleeing dangerous conditions or are victims of torture and legal permanent residents (LPRs) who are returning from trips overseas. (LPRs have been noted in immigration cases to have substantial and strong ties to the U.S. and as a reminder, to become a naturalized U.S. citizen you have to be a legal permanent resident first. So it’s a pretty major deal if I am an LPR and I am now detained indefinitely because I have been abroad for five days. )

Mandate DHS to detain non-citizens (that’s right everyone who is not a U.S. citizen, which includes legal permanent residents, asylees, refugees, non-immigrants, etc.) throughout their removal proceedings regardless of the length of time these proceedings will take without the opportunity for a bond hearing. This goes against one of our key American principles: “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” (U.S. v. Salerno, 481 U.S. 739, 755) This will heavily impact legal permanent residents, asylees and refugees who have criminal convictions and are fighting deportation.

Mandate DHS to detain individuals who were convicted of crimes and have already fulfilled the requirements of their punishment. (So now we’re punishing them again and spending tax payer dollars to keep them in detention facilities.)

Require that individuals who want to challenge their detention by filing a habeas corpus claim to only file in the federal court of the District of Columbia. Usually a habeas corpus claim is filed in the federal district of where the individual is detained. So we’re going to take these individuals’ due process rights away and make it almost impossible for any of them who are outside of the District of Columbia to challenge their detention and at the same time, swamp the D.C. federal court while individuals lucky enough to file a claim in D.C. will further languish in detention as they wait for their hearings.

To see these bullet points and additional information that have been written up by the American Immigration Lawyers Association and the National Immigration Forum, go here and here.